High Court lets stand decision on S.D. Scouts lease

This 2004 aerial shows 18-acre Camp Balboa in Balboa Park, which the Boy Scouts leased from the city of San Diego for $1 per year, but more recent terms of the agreement require $2,500 in annual administrative fees and $1.7 million in improvements.
— John Gibbins / 2004 U-T file photo

This 2004 aerial shows 18-acre Camp Balboa in Balboa Park, which the Boy Scouts leased from the city of San Diego for $1 per year, but more recent terms of the agreement require $2,500 in annual administrative fees and $1.7 million in improvements.
— John Gibbins / 2004 U-T file photo

San Diego  The U.S. Supreme Court has refused to take up one of the central constitutional issues in a long-running legal dispute over the discounted leases for city parkland that San Diego has given to the Boy Scouts.

Monday’s decision allows to stand — at least for now — a federal judge’s ruling that such agreements violate the state’s constitutional ban on government preference for religious groups.

The Scouts lease 16 acres in Balboa Park and another half-acre on Fiesta Island that the city granted under a no-bid and, initially, nominal yearly fee.

After the U.S. Supreme Court ruled in 2000 that the Boys Scouts of America could ban atheists and homosexuals under the Constitution’s right to free association, an agnostic couple and a lesbian couple sued the city over the leases.

Three years later, federal Judge Napoleon Jones struck down the leases because he said they displayed religious preference.

The Scouts appealed that decision to the 9th U.S. Circuit Court of Appeals, which asked the state Supreme Court to weigh in on three questions of state law. They are: Do the leases amount to aid to religion; if so, does that aid support a sectarian purpose; and do the leases violate the state’s “no preference” ban on government favoring a religious group.

Before any state high court decision was made, the Scouts asked the U.S. Supreme Court to weigh in on the 9th Circuit’s conclusion that the couples had standing to file the lawsuit. The justices declined to do so Monday.

That means the case returns to the federal appeals court for a decision on the central issue of the case.

The Boy Scouts couldn’t immediately be reached for comment, but the group did post a statement on its website.

“While Boy Scouts is disappointed with the outcome, the organization respects the court’s decision,” the statement read.

David Blair-Loy, legal director for the American Civil Liberties Union’s local chapter, which filed the lawsuit on behalf of the couples, called the Supreme Court’s decision “a big step along the way” but said the case is far from over.

“It means that the Supreme Court has firmly told the Scouts ‘No, you can’t jump the gun and get us to take up this case in the middle,’” he said. “It’s still not done yet. The appeal needs to go forward on its merits.”

The Scouts had leased land in Balboa Park since 1957 for $1 per year. After the case was filed, the city negotiated a new lease, and the Scouts pay $2,500 in fees per year.

Jones ruled that the Boy Scouts — which bar gay leaders and require members to take an oath to God — are a religious organization and that the leases amounted to an unconstitutional government assistance to religion.

City Councilman Todd Gloria, who is gay, said he is hopeful the Scouts will reconsider their policies because of their repeated court losses on the issue.

“If they’re able to make those changes I think we’d welcome them in Balboa Park, but unfortunately they choose to persist with a policy that’s not reflective of 21st century values,” he said.

Councilman Tony Young echoed those sentiments. “The city of San Diego should not support allowing exclusionary policies to be used on their property,” he said.